DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Z v Chief of Navy [2008] ADFDAT 1
Held: appeal allowed – mitigating factors sufficient to overcome seriousness of offences
Crimes Act 1914 (Cth) s 16A, 17A
Defence Force Discipline Act 1982 (Cth) s 70
Financial Management and Accountability Act 1997 (Cth) s 60(1)
Elliott v Harris (No 2) (1976) 13 SASR 516 followed
House v The King (1936) 55 CLR 499 applied
Malvaso v The Queen (1989) 168 CLR 227 cited
Markarian v The Queen (2005) 228 CLR 357 followed
R v Boushard (1996) 84 A Crim R 499 cited
Wood v Samuels (1974) 8 SASR 465 followed
Z v CHIEF OF NAVY
DFDAT 2 of 2008
HEEREY j (president), MILDREN & DUGGAN JJ (MEMBERS)
5 March 2008
MELBOURNE
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DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL |
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DFDAT 2 OF 2008 |
ON APPEAL FROM THE AUSTRALIAN MILITARY COURT
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BETWEEN: |
Z APPELLANT
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AND: |
CHIEF OF NAVY RESPONDENT |
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TRIBUNAL: |
HEEREY j (president), MILDREN & DUGGAN JJ (MEMBERS) |
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DATE OF ORDER: |
5 march 2008 |
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WHERE MADE: |
MELBOURNE |
THE TRIBUNAL ORDERS THAT:
1. The appeal is allowed.
2. The sentence is varied by directing that the appellant be released forthwith upon the same recognisance as he has already entered into.
3. The time already spent in custody be treated as time served.
4. Otherwise the penalties are affirmed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL |
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ON APPEAL FROM THE AUSTRALIAN MILITARY COURT
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BETWEEN: |
Z APPELLANT
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AND: |
CHIEF OF NAVY RRESPONDENT
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TRIBUNAL: |
HEEREY j (president), MILDREN & DUGGAN JJ |
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DATE: |
5 march 2008 |
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PLACE: |
MELBOURNE |
HEEREY J (PRESIDENT) AND MILDREN J (MEMBER)
REASONS FOR DECISION
1 The appellant pleaded guilty in the Australian Military Court to 128 counts of misusing a Commonwealth credit card pursuant to s 60(1) of the Financial Management and Accountability Act 1997 (Cth). The total amount involved was $31,608.
2 With respect to 70 of the offences the appellant was on 31 January 2008 sentenced to punishments of dismissal from the Defence Force and six months imprisonment to be released after two months, upon entering into a recognisance in the sum of $2000 conditioned to keep the peace for two years. With respect to four of the offences the appellant was severely reprimanded and in respect of the balance of the offences the appellant was sentenced to punishments of dismissal.
3 The only part of the sentences appealed was the failure fully to suspend the sentence of imprisonment. The main ground of appeal argued was that the sentence was manifestly excessive.
4 An application to the AMC for a stay was refused, largely as we understand it on the basis that an appeal to this Tribunal would be heard in the near future. The appeal was heard on 22 February 2008, by which time the appellant had served 22 days imprisonment. At the conclusion of the hearing the Tribunal announced that, by a majority, the appeal would be allowed, the sentence varied by directing that the appellant be released forthwith upon the same recognisance as he had already entered into, time already spent in custody directed to be treated as time served, and otherwise the penalties affirmed.
5 The Tribunal announced that reasons would be published at a later date. Our reasons are as follows.
Offences
6 The appellant enlisted in the Royal Australian Navy in 2002 aged around 17. At the time of the offences, which took place between 16 January and 21 April 2006, he was employed as an Able Seaman at a naval shore base. He was issued with a Diners Club credit card for the purpose of travel services. He was also given a PIN which enabled him to withdraw cash. He used the card to withdraw monies from various automatic teller machines and over-the-counter facilities, and also to purchase some goods.
7 The appellant had a serious drug habit which had commenced when posted to a ship between July 2003 and January 2005. His habit was, according to the evidence he gave before the AMC, costing him $600 to $800 a day. While the bulk of the money wrongfully withdrawn was spent on drugs, some was spent on luxury items such as a plasma television.
Co-operation
8 Investigations resulted in the appellant being interviewed by Service Police on 1 June 2006. He made a full admission of the offences and pleaded guilty at the first opportunity. He also provided exceptional assistance to Service and State Police with investigations of other sailors and civilians. This included
(a) signed statements which implicated 24 sailors at the Base and home ported ships, some of whom were subsequently convicted for Service offences for their involvement with illegal drugs;
(b) information about dealings with illegal drugs by 18 other sailors posted at other locations in Australia as well as 11 who had been discharged from the Australian Defence Force;
(c) information about the involvement with illegal drugs of a Senior Aircraft maintainer who was deployed in the Middle East Area of Operations. The sailor was tested there and subsequently medically discharged from the RAN. Two other deployed persons also tested positive and were returned to Australia and administratively discharged;
(d) information passed to the State Police about the illegal drug use by eight civilians, resulting in the arrest and conviction of a methamphetamine dealer in the area; and
(e) the production of a layman’s guide on most forms of illegal drugs which included descriptions, weight sizes and costs, which is now used as a reference document by Service Police at the Base.
9 There has already been some threat of retaliation to the appellant. It is for this reason that we have not identified him by name.
Restitution
10 With the aid of a loan from his parents the appellant has repaid in full the $31,608 loss to the Commonwealth.
Personal Circumstances
11 The appellant has been in a de facto relationship for four and a half years. He and his partner have two young children, aged two years and ten weeks, and he is providing maintenance towards a child born of an earlier relationship.
12 The appellant’s partner gave evidence before the AMC. As a result of his drug use his behaviour was so bad that they separated while they were in the State where the offences were committed. She left him and went to live in a Queensland provincial city but “decided to give it another shot”. Since he rejoined her he has been “a changed person”. Her evidence was :
He goes to [Narcotics Anonymous] meetings, like, three times a week now. He’s got a sponsor that he calls just about every day. He’s really good with his son. Like Sundays they have their day. And he’s just really, really, really changed a lot.
13 He has made substantial progress with rehabilitation from his drug problems. Since moving to Queensland he has attended Narcotics Anonymous meetings. His sponsor described him as
… someone who is committed to recovery which is evident through his regular attendance at NA meetings and he is a positive and well-liked member with his peers. The longer [the appellant] has stayed clean the more serious he has become about his recovery and he is now seeing the positive effects on his and his family’s life.
Sending the appellant to serve an actual term of imprisonment is likely to disrupt the progress he made at the Narcotics Anonymous meetings, as well as expose him to the possibility of being treated by other prisoners as an informer.
14 He has full time employment as a crane driver earning approximately $900 per week. He expects to get work at a mine site for a company he previously worked for. This would more than double his weekly income.
Statutory principles
15 Section 70 of the Defence Force Discipline Act 1982 (Cth) provides:
(1) A service tribunal, in determining what action under this Part should be taken in relation to a convicted person, shall have regards to:
(a) the principles of sentencing applied by the civil courts, from time to time; and
(b) the need to maintain discipline in the Defence Force.
(2) In so far as the principles referred to in paragraph (1)(a) require the taking to account of any mitigating or aggravating circumstances, the circumstances to be so taken into account in relation to a convicted person shall include:
(a) the person’s rank, age and maturity;
(b) the person’s physical and mental condition;
(c) the person’s personal history;
(d) the absence or existence in the person’s case of previous convictions for service offences, civil court sentences, and overseas offences;
(e) if the service offence involves a victim, the person’s relationship with the victim;
(f) the person’s behaviour before, during and after the commission of the service offence; and
(g) any consequential effects of the person’s conviction or proposed punishment.
16 Section 16A of the Crimes Act 1914 (Cth) provides:
(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
(a) the nature and circumstances of the offence;
(b) other offences (if any) that are required or permitted to be taken into account;
(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct;
(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
(f) the degree to which the person has shown contrition for the offence;
(i) by taking action to make reparation for any injury loss or damage resulting from the offence; or
(ii) in any other manner;
(g) if the person has pleaded guilty to the charge in respect of the offence – that fact;
(h) the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence, or of other offences;
(j) the deterrent effect that any sentence or order under consideration may have on the person;
(k) the need to ensure that the person is adequately punished for the offence;
(m) the character, antecedents, age, means and physical or mental condition of the person;
(n) the prospect of rehabilitation of the person;
(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependents.
Judgment of the AMC
17 In a comprehensive review of the case the learned Chief Military Judge noted that issues of general deterrence and the need to maintain discipline in the Defence Force were important sentencing considerations. As his Honour noted, and obviously correctly in our view,
The message must be sent that members entrusted with a Defence Travel Card in connection with the performance of their duties are to use them honestly, and not misappropriate money for personal gain.
18 His Honour noted, and again we would agree, that generally offences of this kind and magnitude would ordinarily attract a substantial sentence of imprisonment. His Honour observed that the relationship to the appellant’s drug dependencies was offered by way of explanation rather than excuse. His Honour cited, with approval, from the judgment of Callaway JA in R v Boushard (1996) 84 A Crim R 499 at 501 the following passage:
It may be conceded that it is a relevant and sometimes very significant factor in sentencing that an offender engaged in trafficking, especially at “street level”, in order to gain the wherewithal to satisfy his own craving, rather than as a non-user acting purely for reasons of greed and in callous disregard of the grave harm that offence does to its victims. But is quite unsafe, in my opinion, to reason from cases concerning narcotics to a case of armed robbery.
19 There is no suggestion that the appellant was engaged in trafficking. However, to the extent that Callaway JA was expressing a view that if an offender’s stealing was in order to obtain drugs to feed an addiction, drug addiction is a relevant and sometimes significant factor in sentencing, we would agree with his Honour’s observation. The relevance of the appellant’s drug habit was threefold:
(a) It showed that, except in a few instances, the motive was not greed, but a need to satisfy his drug habit. This is relevant to the objective seriousness of the offence. A person who steals out of greed is morally more culpable;
(b) It provided the basis for showing that he was on the road to rehabilitation because of the efforts he had made to overcome his drug addiction; and
(c) It provided the basis for the cooperation he gave to the authorities about other drug users and suppliers, another mitigating factor.
20 After referring to the appellant’s personal circumstances and co-operation, his Honour observed the importance of co-operation as a mitigating factor: see Malvaso v The Queen (1989) 168 CLR 227 at 239. His Honour observed that the co-operation when combined with pleas of guilty, the admissions to the Service Police and repayment were “tangible evidence of contrition and remorse”. After referring to s 17A(1) of the Crimes Act, which provides that a sentence of imprisonment shall not be imposed unless the Court is satisfied no other sentence is appropriate, his Honour nevertheless imposed a sentence of two months. His Honour said his decision
…is not one that I have taken lightly, particularly in view of the learned prosecutor’s indication that the Director of Military Prosecutions would see a fully suspended sentence of imprisonment as appropriate. However, having regard to the amount involved, the period of the offending and the importance of general deterrence be properly effected, I have determined that the offending must be visited with at least some period of imprisonment to be served. The two months on which I have settled is, in my view, the absolute minimum that reflects the gravity of the offences while having given significant weight to the matters advanced in litigation.
Conclusion on the appeal
21 Sentencing involves the exercise of judicial discretion. As such, an appeal from such a decision is governed by the principles classically laid down in House v The King (1936) 55 CLR 499 at 504-505 where Dixon, Evatt and McTiernan JJ said:
The appeal is a full one on law and fact. But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (Citations omitted.)
See also Cranssen v The King (1936) 55 CLR 509 at 519.
22 In the present case counsel for the appellant submitted that some matters were not given proper consideration, and in particular the youth of the appellant, the role played by drugs and the delay between apprehension and conviction. We do not accept these submissions.
23 There is nothing to indicate that the learned Chief Military Judge ignored the age of the appellant. In any event, the age of 22 is four years into adult life and getting to the end of the period at which youth may be prayed in aid in mitigation of wrongdoing.
24 Likewise, the appellant’s drug habit was also considered. As already mentioned, we agree with the view the learned Chief Military Judge took as to this factor.
25 The delay has worked in the appellant’s favour by giving him time to establish solid evidence of rehabilitation.
26 This case in our view falls within the alternative ground in House. The mitigating circumstances when taken in combination, particularly the co-operation, were quite exceptional. They lead us to the conclusion that viewed in all the circumstances a sentence of actual imprisonment was excessive in the relevant sense.
27 Although general deterrence is a significant factor in sentencing for this type of offence, the need for general deterrence was sufficiently met in this case by the imposition of a sentence of imprisonment which carried with it dismissal. A fully suspended sentence of imprisonment is still a sentence of imprisonment and carries with it the probability of actual imprisonment if the terms of the suspended order are breached: see Wood v Samuels (1974) 8 SASR 465 at 468-469; Elliott v Harris (No 2) (1976) 13 SASR 516 at 526-528. See also the comments in Fox R and Freiberg A, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), [9.401]-[9.404]. Dismissal is the second highest punishment available under the DefenceForce Discipline Act (s 67, Schedule 2), and in itself carries with it significant deterrent effect because of the consequences to the individual of a dishonourable discharge. In many cases, although possibly not this one, there are real financial consequences to a dismissal. There is also the fact that the disapprobation associated with a dishonourable discharge is likely to have ongoing consequences to future employment prospects as well as in many other ways in civilian life.
28 The decision in this case will not set a precedent for the level of sentencing in the usual run of cases involving offences of this type because of the exceptional circumstances of the offender.
29 The Learned Chief Military Judge did not indicate the extent of the discount he had given for the cooperation to the authorities and the early plea of guilty. This makes it more difficult for the appellate tribunal to see to what extent the Court took these factors into account. It is desirable, although not appellable error, for courts to indicate in what way these matters have been taken into account, either by indicating the level of the discount, or in some other way. This will encourage pleas of guilty. The practice of indicating the discount for such matters was approved of by the majority in Markarian v The Queen (2005) 228 CLR 357 at 370; and approved by McHugh J at 387; and by Kirby J at 401.
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I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Decision of the Honourable Justice Heerey, President, and the Honourable Justice Mildren, Member |
Associate:
Dated:
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DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL |
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ON APPEAL FROM THE AUSTRALIAN MILITARY COURT
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BETWEEN: |
Z APPELLANT
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AND: |
CHIEF OF NAVY RRESPONDENT
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TRIBUNAL: |
HEEREY j (president), MILDREN & DUGGAN JJ |
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DATE: |
5 march 2008 |
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PLACE: |
MELBOURNE |
DUGGAN J (MEMBER)
REASONS FOR DECISION
30 The facts of this matter are set out in the joint judgment of Heerey and Mildren JJ.
31 The appeal was argued on the basis that the principles set out in House v The King (1936) 55 CLR 499 at 405 were applicable. These principles were also referred to by Gleeson CJ, Gummow, Hayne and Callinan JJ in their joint judgment in Markarian v The Queen (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as ‘manifest excess’, or in a prosecution appeal, as ‘manifest inadequacy’.
32 In the present case the learned Chief Military Judge carefully considered all the factual considerations relevant to the sentencing of the appellant and applied to those facts the sentencing principles relevant to the case. In particular, he directed his attention to those matters which were appropriate to take into account in deciding whether, pursuant to the power conferred by s 20(1)(b) of the Crimes Act 1914 (Cth) (Crimes Act), the appellant should be released either forthwith or after he had served a specified period of the sentence of imprisonment imposed.
33 It was conceded that the penalty of imprisonment for six months was appropriate and, on appeal, no specific error of fact or law in the sentencing remarks was identified.
34 In these circumstances, it would not be appropriate for this tribunal to interfere with the sentence unless it was found to be “unreasonable or plainly unjust”, thus inviting the conclusion that in some way the exercise of the discretion had miscarried.
35 Section 72 of the Defence Force Discipline Act 1982 (Cth) (DFDA) provides that certain sentencing powers in the Crimes Act are applicable to service tribunals. Included in these provisions is s 20(1)(b) of the Crimes Act which provides as follows:
Where a person is convicted of a federal offence or federal offences, the court before which he is convicted may, if it thinks fit:
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(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1).
36 The Crimes Act does not provide any guidance as to the manner in which the discretion conferred by s 20(1)(b) is to be exercised. In light of the principles enunciated in House v The King, the issue for decision on this appeal is not whether it was open to the judge in the exercise of his discretion to make an order for immediate release. Rather it is whether the decision to order release after the appellant had served a period of imprisonment for one month involved error which would permit this tribunal to interfere with the exercise of the discretion: Lowndes v The Queen (1999) 195 CLR 665 at [38]. As has been pointed out, there was no identifiable or latent error, so that if error were to be found it would have to be implicit in the circumstances of the case and the sentence which was imposed.
37 The age of the appellant, the progress he has made with rehabilitation, his pleas of guilty, the fact of restitution and, in particular, his co-operation with and assistance to the authorities were all relevant both to the length of the sentence and the court’s discretion to order immediate release or to direct that some part of the period of imprisonment be served. It is clear that the judge took all of these matters into account for both purposes and that the co-operation of the appellant resulted in a substantial reduction in sentence.
38 However, the circumstances of the offences were also relevant in deciding whether the sentence should have been suspended. This point was made by Kirby J in the following passage in his judgment in Dinsdale v R [2000] 202 CLR 321 at [85]-[86]:
Moreover, the scheme of the legislation, and the two steps which [the Western Australian legislation] requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term. This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy. On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of ‘all the circumstances’. This necessitates the attribution of ‘double weight’ to all of the factors relevant both to the offence and to the offender – whether aggravating or mitigating – which may influence the decision whether to suspend the term of imprisonment.
Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations. This approach is consonant with the recognition in jurisdictions other than Western Australia of the ‘complete discretion’ which, subject to the statute, the primary judge has in suspending a sentence of imprisonment. In other States, it has been considered undesirable to attempt to circumscribe the language of the statute by reference to supposed formulae, particular considerations or any other gloss. (Footnotes omitted.)
39 The considerations personal to the appellant do not require the conclusion that the judge erred in deciding that a part of the sentence should be served. When deciding whether to fully suspend the sentence, the judge emphasised the amount involved in the offending, the period of offending and the importance of general deterrence. In my view he was correct in his assessment that these were pertinent matters to take into account for this purpose.
40 The issue of general deterrence was of particular relevance. Section 70(1)(b) of the DFDA requires a service tribunal to have regard to the need to maintain discipline in the Defence Force when determining an appropriate sentence. The offending in the present case involved serious fraudulent conduct against the Defence Force over a period of approximately three months. The importance of deterring such conduct in the military environment is self-evident.
41 In my view the sentence imposed was, in all respects, within the proper exercise of the judge’s discretion. It is for these reasons that I reached the conclusion that the appeal against sentence should be dismissed.
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I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Decision of the Honourable Justice Duggan, Member |
Associate:
Dated:
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Counsel for the Appellant: |
G P Lynham |
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Solicitor for the Appellant: |
Giudes & Elliot Solicitors |
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Counsel for the Respondent: |
L McDade & J M Gaynor |
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Solicitor for the Respondent: |
Director of Military Prosecutions |
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Date of Hearing: |
22 February 2008 |
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Date of Judgment: |
5 March 2008 |